Fuller v. Baldino
Fuller v. Baldino
Opinion
*452
The plaintiff, Mark Fuller, appeals from the judgment of the trial court dismissing his third party petition for visitation rights pursuant to General Statutes § 46b-59
1
and Practice Book § 25-4 as to the minor child of the defendant, Ann Baldino. The plaintiff claims that the court improperly dismissed his petition without an evidentiary hearing on the ground that he failed to allege facts establishing the requirements for jurisdiction set forth in
Roth
v.
Weston,
*453 The record reveals the following relevant facts and procedural history. On July 31, 2015, the plaintiff filed a third party petition for visitation seeking visitation rights with regard to the defendant's child. The petition alleged the following facts. Since 2006, the plaintiff and the child "have had a parent-like relationship." The plaintiff ended his romantic relationship with the defendant around December, 2013, but "continued to parent the minor child until December, 2014." The plaintiff "has been the only father the minor child has known since the child was approximately two years old. Until December, 2014 ... the [plaintiff] acted as a hands-on parent and held himself out as [the] father. The minor child recognizes the [plaintiff] as 'dad.' " Throughout the plaintiff's relationship with the child, the plaintiff provided financial support for the child; has "cared for the daily needs of the child"; and "has been involved with the major decisions concerning the child's health, education, and welfare." Finally, the petition alleged that the "[d]enial of visitation will cause real and significant harm to the child due to the relationship and bond formed between the [plaintiff] and minor child over the past nine years."
The defendant moved to dismiss the petition for lack of subject matter jurisdiction, arguing that the petition did not allege sufficient facts to establish the prerequisites for jurisdiction set forth in
Roth
v.
Weston
, supra,
Subsequently, the plaintiff filed an objection, arguing that his petition had set forth the necessary factual predicate for subject matter jurisdiction. In support of his objection, the plaintiff filed a memorandum of law and an affidavit in which he expanded upon some of the factual allegations made in his petition. As relevant in this appeal, the petitioner averred in his affidavit (1) that he first met the child in 2005 and lived with the child and the defendant from 2006 until their separation in 2013; (2) that during that time period, and extending until December, 2014, he was the child's "primary parent" in that he took the child to his medical appointments and was "involved in all major decision making," including decisions regarding the child's health; (3) that he would care for the child's "severe health conditions" and presently does not know whether the child continues to receive proper care; (4) that, around the end of their relationship, the defendant "would take off for a day or two at a time without divulging where she was," leaving the child in his care; (5) that he has built a "very strong bond" with the child and that the child "suffers" and "is very emotional" when unable to see him; and (6) that the child has indicated that he misses the plaintiff and still considers the plaintiff to be his father.
The court heard argument on November 4, 2015, and ultimately granted the defendant's motion to dismiss on the record. The court concluded that, although the petition alleged sufficient facts to establish that the plaintiff had a parent-like relationship with the child, *455 neither the petition nor the plaintiff's affidavit sufficiently alleged that the denial of visitation would cause the child to experience real and substantial harm. This appeal followed.
The plaintiff claims that the court improperly concluded that his petition and affidavit failed to allege facts establishing the jurisdictional requirements of Roth . Specifically, the plaintiff argues that the court, in determining that he failed to sufficiently allege that denial of visitation would cause real and substantial harm to the child, failed to consider that the emotional harm suffered by the child as a result of his separation from the plaintiff is sufficient under Roth . 3 According *669 to the plaintiff, he pleaded the substantial harm requirement by virtue of his allegations of his close parental relationship with the child. The defendant concedes *456 that the plaintiff sufficiently alleged a parent-like relationship with the child but asserts that the court properly concluded that the allegations do not amount to the sort of real and substantial harm contemplated by Roth . We agree with the defendant. 4
We begin by setting forth the relevant standard of review and the applicable legal principles. "The standard of review of a motion to dismiss is ... well established. In ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing
*457
them in a manner most favorable to the pleader. ... A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. ... Because a challenge to the jurisdiction of the court presents a question of law, our review of the court's legal conclusion is plenary. ... Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it. ... [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction ...." (Citation omitted; internal quotation marks omitted.)
Fennelly
v.
Norton
,
In
Roth
, our Supreme Court recognized that the "constitutionally protected interest of parents to raise their children without interference undeniably warrants deference and, absent a powerful countervailing interest, protection of the greatest possible magnitude."
Roth
v.
Weston,
supra,
In the present case, the plaintiff argues that he satisfied the real and significant harm requirement because he pleaded facts establishing that he and the child had "such a close father-child bond for an extended period of time ...." The court in
Roth
explained that, although "an allegation such as abuse, neglect or abandonment" clearly would satisfy the real and significant harm requirement;
Roth
v.
Weston,
supra,
With these legal principles in mind, we turn to the present case. Because the first prong of
Roth
is not at issue in this case, we address only the requirement that the plaintiff allege real and substantial harm. We conclude that the plaintiff failed
*671
to carry the burden
Roth
sets where the type of harm alleged is emotional and stems from the denial of visitation itself. Although the plaintiff alleges that he has a "very strong bond" with the child and that the child "suffers" and is "very emotional" when unable to see him, these allegations do not rise to the level of neglect, abuse or abandonment. At the most, these allegations suggest that visitation would be beneficial to or in the best interests of the child, which falls short of the standard set forth in
Roth
. See
Roth
v.
Weston
, supra, 259 Conn. at 226,
In
Clements
v.
Jones,
The judgment is affirmed.
In this opinion the other judges concurred.
General Statutes § 46b-59(b) provides in relevant part: "Any person may submit a verified petition to the Superior Court for the right of visitation with any minor child. Such petition shall include specific and good-faith allegations that (1) a parent-like relationship exists between the person and the minor child, and (2) denial of visitation would cause real and significant harm."
In support of his overarching claim that the court improperly dismissed his third party petition for lack of subject matter jurisdiction, the plaintiff claims in his main brief that the court improperly (1) violated his due process rights when it denied his petition without an evidentiary hearing; (2) concluded that he lacked standing under § 46b-59 ; (3) applied § 46b-59 and relevant case law; (4) found that he did not plead sufficient facts that could be proven through clear and convincing evidence; (5) precluded him at oral argument from citing to similar trial court cases as persuasive authority; (6) failed to consider public policy; and (7) decided that he did not meet his burden of proof to invoke the trial court's subject matter jurisdiction. Our review of the plaintiff's briefs reveals that these arguments all contribute to the plaintiff's central claim that the court erroneously determined that he had failed to plead the jurisdictional requirements of Roth . Accordingly, we address these arguments but do not distinguish between them as separate claims.
The plaintiff also argues that the trial court misinterpreted
Roth
to require an allegation of unfitness against the parent as opposed to an allegation of real and significant harm to the child. As an initial matter, we agree that the harm component of
Roth
did not require the plaintiff to allege that the defendant was an unfit parent. See
DiGiovanna
v.
St. George
,
Upon review of the record, however, we conclude that, in assessing the sufficiency of the allegations, the trial court looked for
either
allegations of unfitness of the parent
or
allegations of real and substantial harm to the child. Where the parent is not unfit, there is a constitutionally required presumption that the parent's opposition to visitation is in the best interests of the child. See
Crockett
v.
Pastore,
We note that, at oral argument before this court, the defendant twice conceded that it was appropriate for the trial court, in determining whether the plaintiff alleged the jurisdictional requirements set forth in
Roth
v.
Weston
, supra, 259 Conn. at 202,
Reference
- Full Case Name
- Mark FULLER v. Ann BALDINO
- Cited By
- 6 cases
- Status
- Published